A supervisor’s violation of the Occupational Health and Safety Act can ground a criminal negligence charge against him, an Ontario preliminary inquiry judge has decided, sending the criminal charges to trial. We reported on this case in January; the court’s reasons for decision were recently made available.

The criminal negligence charge was laid against the Project Supervisor of Metron Construction after five workers fell 13 stories to their deaths when a suspended scaffold collapsed on Christmas Eve, 2009.

The Crown and the defence agreed that in order for the Project Supervisor to be guilty of criminal negligence, the Crown must prove that, by act or omission, he failed to perform a duty, and that if the failure was an omission, the failure was “wanton or reckless”.

The court decided that evidence of the Project Supervisor’s failure to ensure that all workers were tied to lifelines was sufficient proof of criminal negligence causing death that the charges should proceed to trial. The court found that the duty to ensure that workers were connected to lifelines was set out in the Occupational Health and Safety Act and in the rules of the Construction Safety Association of Ontario.

The Project Supervisor’s consent, tacit or otherwise, to at least 5 workers using the swing stage with their equipment to ascend or descend 14 or more stories without the protection of lifelines was a marked and substantial departure from reasonable prudence.

The judge stated that safety regulations “do not establish criminal standards”, meaning a violation of a safety regulation will not automatically ground a criminal negligence charge; that will be of some comfort to employers and supervisors. However, in this case, there was evidence of a “substantial departure from the norm” and “wanton disregard”, factors that effectively could turn the breach of the Occupational Health and Safety Act duty into criminal negligence.

We will provide further updates on this important and high-profile case as they become available.

R. v. Kazenelson, 2013 CarswellOnt 1765 (Ontario Court of Justice)

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